2015Da70372 Loans

A

B

Seoul Central District Court Decision 2015Na4732 Decided October 21, 2015

March 24, 2016

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. In order to secure payment of the underlying claim, the extinctive prescription of a claim shall be interrupted if a creditor exercises his/her right by seizing the obligor’s property with a claim against a bill. However, in cases where the extinctive prescription of a claim against a bill has already been completed, even if a claim against a bill is seized with a claim against which the prescription has already been expired, it cannot be deemed a lawful exercise of rights to realize the claim against a bill or the underlying claim, and thus, the extinctive prescription of the underlying claim cannot be interrupted by such seizure (see, e.g., Supreme Court Decision 2010Da6345, May 13, 201

2. According to the reasoning of the lower judgment and the record, the Plaintiff lent KRW 8 million to the Defendant on or around 200 without fixing the due date. The Defendant issued a promissory note with a face value of KRW 8 million to secure the above loan obligation to the Plaintiff on January 20, 200, and prepared a notarial deed related thereto around that time. The Plaintiff applied for a seizure and collection order with respect to the Defendant’s deposit claim based on the notarial deed of this case on January 1, 2009 and received the acceptance of the acceptance order on the notarial deed on the 16th of the same month.

3. Examining the above facts in light of the Supreme Court precedents as seen earlier, it is apparent that the time when the new collection order of the Defendant’s deposit claims was issued is the time when three years elapsed, which is the extinctive prescription period of the instant promissory note claims. Therefore, even if the Defendant’s property was seized, the extinctive prescription of the loan claims, which is the underlying claim, cannot be deemed interrupted by the seizure.

Nevertheless, the lower court rejected the Defendant’s defense of extinctive prescription by deeming that the extinctive prescription of the Plaintiff’s loan claim was interrupted by a seizure and collection order, which covers the Plaintiff’s loan claim as the instant promissory note claim. In so doing, the lower court erred by misapprehending the legal doctrine on the judgment, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Justices Lee In-bok, Counsel for the appeal

Justices Kim Yong-deok

Justices Park Jae-young